The Appealability of SC Orders: A Case of Statutory Construction

I recently moved the South Carolina Court of Appeals to dismiss an appeal from an order that set aside a consent judgment. I had a case from the Court dead on point, so I foresaw clear sailing. Opposing counsel then twisted my plot.     

For background, South Carolina generally follows the final judgment rule. Under it, a case must have completely ended in the trial court before a party may appeal orders entered along the way. But exceptions exist. Section 14-3-330 allows you to immediately appeal certain types of intermediate orders and other statutes allow for other immediate appeals. Earlier posts on this are available herehere, and here.

The Court in Pocisk v. Sea Coast Const. of Beaufort, 380 S.C. 584, 671 S.E.2d 98 (Ct.App. 2008), worked through this framework and held that an order setting aside a consent judgment is not immediately appealable because it did not fall within a § 14-3-330 exception. So I was good—until opposing counsel upended the framework.

In opposing counsel’s view, S.C. Code § 14-3-330 does not apply to the Court of Appeals. Another statute applies, counsel argued, and allows appeals “taken from an order, judgment, or decree of the circuit court, family court, a final decision of an agency, a final decision of an administrative law judge, or the final decision of the Workers’ Compensation Commission.”  S.C. Code § 14-8-200.

Negative implications

Did you notice the difference in listed orders? One clause in the series talks about “an order, judgment, or decree of the circuit court, family court . . ..” The next clause in the series talks about other “final decisions.” My opposing counsel seized on the distinction, arguing all circuit court and family court orders are immediately appealable because they are not limited to “final decisions” like the other orders are.

This is the negative-implication canon, in Latin known as “expressio unius est exclusio alterius.” While legitimate, the canon only goes so far. It “is helpful as a rule of construction, but it is not inflexible, and it should be applied, as all other rules of construction, as a means of ascertaining the legislative intention, and it should not be allowed to have the effect of defeating that intention which is otherwise plainly discovered.”  E.M. Matthews Co. v. Atlantic Coast Line R. Co., 102 S.C. 494, 86 S.E. 1069, 1070 (1915).

So in my case is legislative intent otherwise plainly discovered?

Changing the Common Law 

A statute’s text should be read in its historical context. There is a “very strong presumption” against reading statutes in a way that upends established common law. Columbia Real Estate & Trust Co. v. Royal Exchange Assurance, 132 S.C. 427, 128 S.E. 865 (1925).

When §14-8-200 was enacted in 1979, the final judgment rule was already a fixture of South Carolina appellate procedure. See e.g., Good v. Hartford Accident and Indem. Co., 201 S.C. 32, 21 S.E.2d 209 (1942)(surveying the rule and its applications). Because the rule was so firmly established, it is as reasonable to assume that the Legislature would not have changed the law so dramatically without saying so explicitly.

Harmonizing Related Statutes 

A statute’s text must be read in its textual context. Rather than isolate a clause, readers should consider the statute’s surrounding text and the text of surrounding statutes.

The text of § 14-8-200, read as a whole, does not deal with whether an order is appealable as much as whether you appeal to the Court of Appeals or the Supreme Court.

Another statute deals with this more specifically and provides, “An appeal may be taken to the Supreme Court or the Court of Appeals in the cases mentioned in Sections 14-3-320 and 14-3-330.” S.C. Code § 18-9-10. Under this more specific statute, the Court of Appeals applies § 14-3-330 standards.

Another statute allows the Court of Appeals to immediately review appeals from some narrowly defined, circuit court orders. S.C. Code § 15-48-200(a). This is surplusage if the court could already immediately review all circuit court orders.

And another statute grants the Supreme Court the discretion to review decisions rendered by the Court of Appeals.  S.C. Code § 14-8-210. This review is curtailed if § 14-8-200 allows the Court of Appeals to review orders that § 14-3-330 forbids the Supreme Court from reviewing.

These statutes may be harmonized, giving each one effect. Section 18-9-10 provides that the Court of Appeals and Supreme Court apply the same standards on whether a trial court order is appealable. If it is, §14-8-200 determines whether the appeal is to the Court of Appeals or the Supreme Court. If the appeal is to the Court of Appeals, § 14-8-210 authorizes the Supreme Court to later review the Court of Appeals opinion.

Legislative Inactivity

The harmonization is also consistent with the unbroken case law. No appellate decision has ever read § 14-8-200 the way my opposing counsel did. The case law instead applies § 14-3-330 to the Court of Appeals.

Man Looking in BookThe Supreme Court has reversed the Court of Appeals for failing to dismiss an appeal that did not satisfy the statute. See, e.g., Baldwin Const. Co., Inc. v. Graham, 357 S.C. 227, 593 S.E.2d 146 (2004). For its part, the Court of Appeals began dismissing appeals under § 14-3-330 almost as soon as the recreated Court began hearing appeals in 1983. See Lewis v. Atkinson Implement Co., Inc., 280 S.C. 87, 311 S.E.2d 80 (Ct.App. 1983). In the decades since, scores of Court of Appeals’ opinions have dismissed appeals from circuit court and family court orders that do not satisfy the statute. Just this week, the Court dismissed an appeal from a circuit court order because the order was not immediately appealable.

If the courts were so wrong on this for so long, it is reasonable to assume that the Legislature would have stepped in and fixed it. Its inactivity confirms that the courts have it right. See Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 584 S.E.2d 100 (2003)(concluding that the General Assembly’s decades-long inactivity is evidence that the courts were construing the statute correctly).

So how did it go?

The Court of Appeals agreed that Pocisk controlled and dismissed the appeal. Vanderhall v. Wilson, Appellate Case No. 2016-002107 (S.C.App. Jan. 20, 2017).

Has anyone else successfully moved to dismiss an appeal? Please leave a comment and tell us about it.

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